Judge: Gregory Keosian, Case: 22STCV23266, Date: 2023-01-10 Tentative Ruling

Case Number: 22STCV23266    Hearing Date: January 10, 2023    Dept: 61

Defendant Lena Giron’s Motion to Strike Portions of the First Amended Complaint is DENIED. Defendants to answer within 30 days.

I.                MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Defendant Lena Giron (Giron) moves to strike the prayer for punitive damages alleged against her on the grounds that the FAC states no facts specifically as to Giron’s conduct, but rather includes allegations suggesting that the only wrongdoer at the relevant times was Giron’s co-defendant Ryan Paul Levihn-Coon. (Motion at pp. 6–10.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:

“Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

“Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

“Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

The punitive damages alleged against Defendant Giron are sufficient. The premise of Giron’s argument is incorrect: The FAC alleges that Giron engaged in specific conduct with the design to harm Plaintiffs and deceive the public — namely, wrongfully occupying Plaintiffs’ property, stealing supplies from Plaintiffs and their clients, and thereafter impersonating Plaintiffs, using their name and marks, to deter others from doing business with them on false grounds. (FAC ¶¶ 20–63.) The above acts are alleged to be intentional wrongs, and as such the prayer for punitive damages “may be supported by pleading that the wrong was committed willfully or with a design to injure.” (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041.) These allegations, if proven, may show malice, oppression, and fraud, and entitle Plaintiffs to exemplary damages under Civil Code § 3294.

The fact that Defendants are alleged to have done these things in concert does not detract from Plaintiffs’ prayer for punitive damages against Giron specifically. Giron presents no authority for the proposition that respective defendants’ roles in the commission of alleged wrongs must be pleaded separately and individually in order to allow the plaintiff to plead entitlement to punitive damages. The rule is rather that “the particularity of pleading required depends upon the extent to which the defendant in fairness needs detailed information that can be conveniently provided by the plaintiff, and that less particularity is required where the defendant may be assumed to possess knowledge of the facts as least equal, if not superior, to that possessed by the plaintiff.” (Burks v. Poppy Const. Co. (1962) 57 Cal.2d 463, 474.) In alleging the above conduct, Defendants have provided Giron with good notice of the conduct she is charged with. The inclusion of additional allegations related specifically to co-defendant Levihn-Coon does not vitiate this notice or pose a risk of confounding Giron’s defense.[1]

The motion is therefore DENIED.